39 F. 610 -

39 F1d 610

class="ad-unit">

Case Text

610

FEDERAL REPORTER,

vol. 39.

they converge to or towards the same point, and, by this co-action, control or secure, and are intended to secure, each other against rotation. The defendants' links are extension, and not locking, braces. 'Vhen they are extended, and the collars are clamped, the links, in the language of the defendants' expert, "rotate on their pivots," very much as they would do if parallel to each other, and it is apparent that they are not intended to secure each other against rotation. This mutual control, by means of opposed action, is necessary in a device acting vertically. It does not exist in the defendants' links, but the result is partially attained by an additional set of single supporting braces, which are attached about half way dOW:l the skirt. There is such a substantial doubt in regard to infringement as to prevent the granting of the motion, which is therefore denied.

JKNKINS

et al.

'1:. RUBERG

et al.

(Circuit Court, D . .J[assac1msctts.

FOR SHOE-SHANKS.

August 5,1889.;

FOR MAKING METALLIC

Reissued letters patent No. 8,163, issued April 9, 1878, to John Hyslop, Jr., for improvements in machines for making metallic shoe-shanks, describe a combination of the punching, cutting, and bending mechanism, arranged to operate as set forth. Machines made under letters patent issued to Ruberg January 11, 1887, embrace these three steps, but in the Ruberg- machine the projections for making the reverse bends are absent, and there is nothing to correspond to the guide-way of the Hyslop machine, by means of which the blank is to be taken from the cutting device, and delivered to the bending mechanism. The arrangement of the shears and bending dies in Ruberg's rna· chine is also different. Hyslop was the first man to combine the three operations in a machine for making metallic shoe-shanks, but the combination of punching and cutting mechanism was old. Held, that the Ruberg machine was not an infringement of Hyslop's patent.

At Law. Action for infringement of letters patent. C. H. Drew, for plaintiffs. J. E. Maynadier, for defendants.
COLT, J. This suit is brought upon reissued letters patent No. 8,133, dated April 9, 1878, granted to John Hyslop, Jr., for improvements in machines for making metallic shoe-shanks. The invention relates to the organization of a machine by which metal shanks for shoes are cut, punched, and bent, and have their opposite ends reversely bent by one continuous operation. The first and only claim in controversy is as follows:

"In a machine for making metallic shoe-shanks, the combination, substantially as described, of the punching mechanism, the cutting mechanism, and the bending mechanism, arrangp.d to operate as set forth."

At the date of the Hyslop invention it can hardly be said that it was new to cut and punch at each end a strip of metal by one operation, but

JENKINS V. R·UBERG.

611

the evidence discloses that Hyslop was the first man to combine in one machine the successive operations of cutting, punching, and bending for the production of a metallic shoe-shank. It is admitted that the defendants' machine made under his patent of January 11,1887, embraces these three successive steps. but it is contended that the cutting and bending devices are quite different from those described in the Hyslop patent. It cannot, of course, be held that the Hyslop patent covers all machines for making metallic shoe-shanks which have cutting, punching, and bending mechanisms. The only question in the case, therefore, is narrowed down to this: Whether the cutting and bending mechanisms found in the Ruberg machine are the equivalent of those described in the Hyslop patent. What did Hyslop invent, and does the defendant accomplish the same result by substantially the same or equivalent means? Giving the Hyslop patent a fairly broad interpretation by reason of his being the first person to combine all these operations in a single machine, still I cannot bring my mind to the conclusion that the Ruberg machine infringes that patent. The Ruberg machine leaves out some of the important features which Hyslop makes essential parts of his machine, and substitutes no equivalents therefor. The projections for making the reverse bend are absent from the Ruberg machine. There .is nothing in the Ruberg machine which corre,;ponds to the guide-way of the Hyslop machine by means of which the blank is taken from the cutting device and delivered to the bending mechanism. In the Hyslop patent this mechanism is made up of the lips or flanges, It, which the front edge ofthe plate is held to gauge the cut, the incline, m, down which the blank falls guided by the lips, h, and the stop pins, c2 , secured to the top of the bending die, and which serve to arrest the blank as it falls down the incline. In RUberg's machine the organization is more simple. The bending dies are placed close to or just back of the stationary cutter, and the blank is brought into position between the bending dies before it is cut from the strip. When the strip of metal in the Ruberg machine, from which the blank is to be cut, is fed into the machine, and comes against the stops, which give the width of the blank to be cut, that portion of the strip which makes the blank is directly over the stationary or lower die, and in position for the upper die to act upon it immediately after the blank is cut. The arrangement of the shears and bending dies in the Ruberg machine is very different from their arrangement in the Hyslop patent. The combination of punching and cutting mechanism was not llew with Hyslop. He did rtlvent one way of combining cutting mechanism with bending mechanism, and Ruberg devised another way to accomplish the same result. The ingenious expert for the complainant has sought to show that the means employed by both are substantially the equivalent of each Odler, but I find the fact to be otherwise, and it follows that judgment should be entered for the defendants.

612

FEDERAL REPORTER,

vol. 39.

AMAZEEN MAOHINE

Co.

V. KNIGHT

et ale

(Ot"rcuit Court, D. Massachusetts.

August 12, 1889. \

PATENTS FOR INVENTIONS-I:NFRINGEMENT-PRELJMINARY IN.JUNCTION.

Where it appears, on a bill to restrain the infringement of a patent by making and selling duplicate parts of the patented machine. that defendants had been accustomed to make duplicate parts for plaintiff and its assignors, 'and to repair the patented machine for others, of which plaintiff was aware, a preliminary injunction should be denied.

In Equity. Motion for preliminary injunction. C. F. Perkins, for complainant. T. W. Porter, for defendants. COLT, J. This is a motion for a preliminary injunction. The defendants are charged with infringing three patents, Nos. 200,682, 220,· 906, and 273,931, issued to Christopher Amazeen, for improvements in leather-skiving machines. The defendants carryon a general machineshop, and they repair Amazeen skiving-machines, and they are charged in this suit with having repaired or rebuilt a second-hand machine, and with having duplicate parts of these machines on hand for sale. It appears in evidence that for years a number of firms besides these defendants, in Boston and elsewhere, have dealt in various parts of the Amazeen machine. It appears by the affidavit of John Walker, of Boston, that he was formerly a member of the firm of Eddy, Sherman & Co., and became acquainted with Amazeen in 1879; that the firm then began making machines for Amazeen, and that they also made all the duplicate parts that were required to replace those worn out in old machines; and that they not only supplied Amazeen with all such parts as he required for his customers, but also sold such parts on their own account, with full knowledge of Amazeen himself, to their customers or to whoever called for them. Afterwards Amazeen sold out his patents to Dorr & Eaton, and they continued to buy duplicate parts of Eddy, Sherman & Co., and to send machines to them to be repaired, and they still continued to make it a regular part of their business to keep a stock on hand and sell generally duplicate parts of the machine. On their billheads was printed the fact that they made and dealt in the parts of the machine. Subsequently Dorr & Eaton sold the patents to the complainant, and its manager, Mr. Bailey, often sent machines to ·Walker, who was then doing businflss by himself, for repairs. ·Walker produces 19 letters from Bailey, ordering repairs of different machines, and he swears that Bailey knew that he was making and selling duplicate parts of the Amazeen machines. On the bill-heads which Walker rendered was a printed notice that he repaired these machines. I am aware that Bailey, the complainant's agent, denies any knowledge until shortly before this suit was brought that any party was selling to the public parts of the Amazeen machine. However this may be, it is clear from the evidence that numerous parties in Boston, from the time the Amazeen